More Expert Analysis On The NSA Program
Last night, Sabrina posted the complete column written by Andrew McCarthy. It slammed the Democrats and the civil liberties moonbats over their unfounded outrage over this program. Today, three experts in the legal field also fired back. They are cited below.
http://www.chicagotribune.com/technology/chi-0512210142dec21,1,2062394.story?coll=chi-technology-hed By John Schmidt, served from '94-'97 as Pres. Clinton's associate attorney general
President Bush's post- Sept. 11, 2001, authorization to the National Security Agency to carry out electronic surveillance into private phone calls and e-mails is consistent with court decisions and with the positions of the Justice Department under prior presidents.
The president authorized the NSA program in response to the 9/11 terrorist attacks on America. An identifiable group, Al Qaeda, was responsible and believed to be planning future attacks in the United States. Electronic surveillance of communications to or from those who might plausibly be members of or in contact with Al Qaeda was probably the only means of obtaining information about what its members were planning next. No one except the president and the few officials with access to the NSA program can know how valuable such surveillance has been in protecting the nation.
In the Supreme Court's 1972 Keith decision holding that the president does not have inherent authority to order wiretapping without warrants to combat domestic threats, the court said explicitly that it was not questioning the president's authority to take such action in response to threats from abroad.Four federal courts of appeal subsequently faced the issue squarely and held that the president has inherent authority to authorize wiretapping for foreign intelligence purposes without judicial warrant.
In the most recent judicial statement on the issue, the Foreign Intelligence Surveillance Court of Review, composed of three federal appellate court judges, said in 2002 that "All the ... courts to have decided the issue held that the president did have inherent authority to conduct warrantless searches to obtain foreign intelligence ... We take for granted that the president does have that authority."
The passage of the Foreign Intelligence Surveillance Act in 1978 did not alter the constitutional situation. That law created the Foreign Intelligence Surveillance Court that can authorize surveillance directed at an "agent of a foreign power," which includes a foreign terrorist group. Thus, Congress put its weight behind the constitutionality of such surveillance in compliance with the law's procedures.
But as the 2002 Court of Review noted, if the president has inherent authority to conduct warrantless searches, "FISA could not encroach on the president's constitutional power."
And that is the key point to this whole argument. The Constitution is the highest law in the land. It cannot be circumvented by Congressional bills, even if the president signs them. It cannot be gone around through judicial fiat. The Constitution is explicit in stating that the president is the "Commander in Chief of the Army and Navy of the United States." When this nation goes to war, the president's powers expand in the service of this enumerated duty. This includes taking steps necessary to protect the homeland, and in that defense of America, he is tasked with taking steps necessary to prevent sabotage and attacks to America.
http://uchicagolaw.typepad.com/faculty/2005/12/presidential_wi.html By Cass Sunstein, University of Chicago Law Professor
The discussion of wiretapping by the President, without court approval, raises a number of important and interesting legal issues. According to CNN, Attorney General Gonzales recently said, "There were many people, many lawyers within the administration who advised the president that he had an inherent authority as commander in chief under the Constitution to engage in" this kind of "signal intelligence of our enemy." The Attorney General added, "We also believe that the authorization to use force, which was passed by the Congress in the days following the attacks of September 11, constituted additional authorization for the president to engage in this kind of signal intelligence."
I want to suggest here that this last statement is more plausible than it might seem at first glance. If the statement is indeed correct, some legal questions certainly remain, but at least we will have made progress.
The authorization for the use of military force (AUMF) says, "the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons."
This authorization clearly supported the war in Afghanistan. It also clearly justifies the use of force against Al Qaeda. In the Hamdi case, the Supreme Court added that the AUMF authorizes the detention of enemy combatants -- notwithstanding 18 USC 4001(a), which requires an Act of Congress to support executive detention. In the Court's view, the AUMF stands as the relevant Act of Congress, authorizing detention. It is therefore reasonable to say that the AUMF, by authorizing the use of "all necessary and appropriate force," also authorizes surveillance of those associated with Al Qaeda or any other organizations that "planned, authorized, committed, or aided the terrorist attacks" of September 11.
The reason is that surveillance, including wiretapping, is reasonably believed to be an incident of the use of force. It standardly occurs during war. If the President's wiretapping has been limited to those reasonably believed to be associated with Al Qaeda and its affiliates -- as indeed he has said -- then the Attorney General's argument is entirely plausible. (The AUMF would not permit wiretapping of those without any connection to nations, organizations, and persons associated with the September 11 attacks.)
This brief statement does not answer several other questions, including (a) whether, as the Attorney General also contends, the President has inherent constitutional authority to engage in this kind of wiretapping (authority he does not need if the AUMF is sufficient), (b) whether specific statutes negate the authority that the AUMF appears to give (as Senator Feingold has argued -- an argument that in some tension with Hamdi), and (c) whether there might be a possible Fourth Amendment barrier to these wiretaps (a barrier that might remain even if the AUMF provides authorization, see Hamdi on due process limits on the power to detain).
The professor nails the point home with explaining that his surveillance powers fall under the authorization to use force, or AUMF. This falls under the necessary powers the president needs to protect America. Pres. Carter used it. Pres. Reagan order it. Pres. Bush (41) utilized it during the first Gulf War. Pres. Clinton used it, as well. (The speculation regarding the Clinton use of this power revolves around his surveillance of "militia groups" that might have been involved with the Oklahoma City bombing.) The following comes from the announcement from Pres. Clinton himself on Feb. 9, 1995:
"The Attorney General is authorized to approve physical searches, without a court order"
The following comes from the WaPo from July of 1995:
Extend not only to searches of the homes of U.S. citizens but also -- in the delicate words of a Justice Department official -- to "places where you wouldn't find or would be unlikely to find information involving a U.S. citizen... would allow the government to use classified electronic surveillance techniques, such as infrared sensors to observe people inside their homes, without a court order.
"Deputy Attorney General Jamie S. Gorelick, the Clinton administration believes the president "has inherent authority to conduct warrantless searches for foreign intelligence purposes.
"Secret searches and wiretaps of Aldrich Ames's office and home in June and October 1993, both without a federal warrant.Government officials decided in the Ames case that no warrant was required because the searches were conducted for "foreign intelligence purposes," a goal of such vital national security interest that they said it justified extraordinary police powers.
Government lawyers have used this principle to justify other secret searches by U.S. authorities."The number of such secret searches conducted each year is classified..."
Pres. Clinton was allowed to do it for far less circumstances than for war, and he was operating under no aurthorization of force, declaration of war, or anything else that is remotely similar.
http://www.washingtonpost.com/wp-dyn/content/article/2005/12/20/AR2005122001053.html By Richard Posner, Judge on the 7th Circuit Court of Appeals, and senior lecturer at the University of Chicago.
We've learned that the Defense Department is deeply involved in domestic intelligence (intelligence concerning threats to national security that unfold on U.S. soil). The department's National Security Agency has been conducting, outside the framework of the Foreign Intelligence Surveillance Act, electronic surveillance of U.S. citizens within the United States. Other Pentagon agencies, notably the one known as Counterintelligence Field Activity (CIFA), have, as described in Walter Pincus's recent articles in The Post, been conducting domestic intelligence on a large scale. Although the CIFA's formal mission is to prevent attacks on military installations in the United States, the scale of its activities suggests a broader concern with domestic security. Other Pentagon agencies have gotten into the domestic intelligence act, such as the Information Dominance Center, which developed the Able Danger data-mining program.
These programs are criticized as grave threats to civil liberties. They are not. Their significance is in flagging the existence of gaps in our defenses against terrorism. The Defense Department is rushing to fill those gaps, though there may be better ways.
The collection, mainly through electronic means, of vast amounts of personal data is said to invade privacy. But machine collection and processing of data cannot, as such, invade privacy. Because of their volume, the data are first sifted by computers, which search for names, addresses, phone numbers, etc., that may have intelligence value. This initial sifting, far from invading privacy (a computer is not a sentient being), keeps most private data from being read by any intelligence officer.
The data that make the cut are those that contain clues to possible threats to national security. The only valid ground for forbidding human inspection of such data is fear that they might be used to blackmail or otherwise intimidate the administration's political enemies. That danger is more remote than at any previous period of U.S. history. Because of increased political partisanship, advances in communications technology and more numerous and competitive media, American government has become a sieve. No secrets concerning matters that would interest the public can be kept for long. And the public would be far more interested to learn that public officials were using private information about American citizens for base political ends than to learn that we have been rough with terrorist suspects -- a matter that was quickly exposed despite efforts at concealment.
The Foreign Intelligence Surveillance Act makes it difficult to conduct surveillance of U.S. citizens and lawful permanent residents unless they are suspected of being involved in terrorist or other hostile activities. That is too restrictive. Innocent people, such as unwitting neighbors of terrorists, may, without knowing it, have valuable counterterrorist information. Collecting such information is of a piece with data-mining projects such as Able Danger.
The goal of national security intelligence is to prevent a terrorist attack, not just punish the attacker after it occurs, and the information that enables the detection of an impending attack may be scattered around the world in tiny bits. A much wider, finer-meshed net must be cast than when investigating a specific crime. Many of the relevant bits may be in the e-mails, phone conversations or banking records of U.S. citizens, some innocent, some not so innocent. The government is entitled to those data, but just for the limited purpose of protecting national security.
The Pentagon's rush to fill gaps in domestic intelligence reflects the disarray in this vital yet neglected area of national security. The principal domestic intelligence agency is the FBI, but it is primarily a criminal investigation agency that has been struggling, so far with limited success, to transform itself. It is having trouble keeping its eye on the ball; an FBI official is quoted as having told the Senate that environmental and animal rights militants pose the biggest terrorist threats in the United States. If only that were so.
Most other nations, such as Britain, Canada, France, Germany and Israel, many with longer histories of fighting terrorism than the United States, have a domestic intelligence agency that is separate from its national police force, its counterpart to the FBI. We do not. We also have no official with sole and comprehensive responsibility for domestic intelligence. It is no surprise that gaps in domestic intelligence are being filled by ad hoc initiatives.
We must do better. The terrorist menace, far from receding, grows every day. This is not only because al Qaeda likes to space its attacks, often by many years, but also because weapons of mass destruction are becoming ever more accessible to terrorist groups and individuals.
All three men make a solid and expected rebuttal of this issue that the Democrats , and others, have decided to hang their hat on. To say that the president lacks these powers is ignorant. He does have the right--and the enumerated power within the Constitution--to take any and all means to protect America from all enemies, foreign or domestic. If this is the debate the Democrats choose to have, and this is the time they have chosen, then let the real debate begin. They have everything to lose if they lose this debate. America will see them for what they are, which is a party so rooted in defeat, and blinded by hatred, that they cannot see the forest through the trees when it comes to national security.
The Bunny ;)
Last night, Sabrina posted the complete column written by Andrew McCarthy. It slammed the Democrats and the civil liberties moonbats over their unfounded outrage over this program. Today, three experts in the legal field also fired back. They are cited below.
http://www.chicagotribune.com/technology/chi-0512210142dec21,1,2062394.story?coll=chi-technology-hed By John Schmidt, served from '94-'97 as Pres. Clinton's associate attorney general
President Bush's post- Sept. 11, 2001, authorization to the National Security Agency to carry out electronic surveillance into private phone calls and e-mails is consistent with court decisions and with the positions of the Justice Department under prior presidents.
The president authorized the NSA program in response to the 9/11 terrorist attacks on America. An identifiable group, Al Qaeda, was responsible and believed to be planning future attacks in the United States. Electronic surveillance of communications to or from those who might plausibly be members of or in contact with Al Qaeda was probably the only means of obtaining information about what its members were planning next. No one except the president and the few officials with access to the NSA program can know how valuable such surveillance has been in protecting the nation.
In the Supreme Court's 1972 Keith decision holding that the president does not have inherent authority to order wiretapping without warrants to combat domestic threats, the court said explicitly that it was not questioning the president's authority to take such action in response to threats from abroad.Four federal courts of appeal subsequently faced the issue squarely and held that the president has inherent authority to authorize wiretapping for foreign intelligence purposes without judicial warrant.
In the most recent judicial statement on the issue, the Foreign Intelligence Surveillance Court of Review, composed of three federal appellate court judges, said in 2002 that "All the ... courts to have decided the issue held that the president did have inherent authority to conduct warrantless searches to obtain foreign intelligence ... We take for granted that the president does have that authority."
The passage of the Foreign Intelligence Surveillance Act in 1978 did not alter the constitutional situation. That law created the Foreign Intelligence Surveillance Court that can authorize surveillance directed at an "agent of a foreign power," which includes a foreign terrorist group. Thus, Congress put its weight behind the constitutionality of such surveillance in compliance with the law's procedures.
But as the 2002 Court of Review noted, if the president has inherent authority to conduct warrantless searches, "FISA could not encroach on the president's constitutional power."
And that is the key point to this whole argument. The Constitution is the highest law in the land. It cannot be circumvented by Congressional bills, even if the president signs them. It cannot be gone around through judicial fiat. The Constitution is explicit in stating that the president is the "Commander in Chief of the Army and Navy of the United States." When this nation goes to war, the president's powers expand in the service of this enumerated duty. This includes taking steps necessary to protect the homeland, and in that defense of America, he is tasked with taking steps necessary to prevent sabotage and attacks to America.
http://uchicagolaw.typepad.com/faculty/2005/12/presidential_wi.html By Cass Sunstein, University of Chicago Law Professor
The discussion of wiretapping by the President, without court approval, raises a number of important and interesting legal issues. According to CNN, Attorney General Gonzales recently said, "There were many people, many lawyers within the administration who advised the president that he had an inherent authority as commander in chief under the Constitution to engage in" this kind of "signal intelligence of our enemy." The Attorney General added, "We also believe that the authorization to use force, which was passed by the Congress in the days following the attacks of September 11, constituted additional authorization for the president to engage in this kind of signal intelligence."
I want to suggest here that this last statement is more plausible than it might seem at first glance. If the statement is indeed correct, some legal questions certainly remain, but at least we will have made progress.
The authorization for the use of military force (AUMF) says, "the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons."
This authorization clearly supported the war in Afghanistan. It also clearly justifies the use of force against Al Qaeda. In the Hamdi case, the Supreme Court added that the AUMF authorizes the detention of enemy combatants -- notwithstanding 18 USC 4001(a), which requires an Act of Congress to support executive detention. In the Court's view, the AUMF stands as the relevant Act of Congress, authorizing detention. It is therefore reasonable to say that the AUMF, by authorizing the use of "all necessary and appropriate force," also authorizes surveillance of those associated with Al Qaeda or any other organizations that "planned, authorized, committed, or aided the terrorist attacks" of September 11.
The reason is that surveillance, including wiretapping, is reasonably believed to be an incident of the use of force. It standardly occurs during war. If the President's wiretapping has been limited to those reasonably believed to be associated with Al Qaeda and its affiliates -- as indeed he has said -- then the Attorney General's argument is entirely plausible. (The AUMF would not permit wiretapping of those without any connection to nations, organizations, and persons associated with the September 11 attacks.)
This brief statement does not answer several other questions, including (a) whether, as the Attorney General also contends, the President has inherent constitutional authority to engage in this kind of wiretapping (authority he does not need if the AUMF is sufficient), (b) whether specific statutes negate the authority that the AUMF appears to give (as Senator Feingold has argued -- an argument that in some tension with Hamdi), and (c) whether there might be a possible Fourth Amendment barrier to these wiretaps (a barrier that might remain even if the AUMF provides authorization, see Hamdi on due process limits on the power to detain).
The professor nails the point home with explaining that his surveillance powers fall under the authorization to use force, or AUMF. This falls under the necessary powers the president needs to protect America. Pres. Carter used it. Pres. Reagan order it. Pres. Bush (41) utilized it during the first Gulf War. Pres. Clinton used it, as well. (The speculation regarding the Clinton use of this power revolves around his surveillance of "militia groups" that might have been involved with the Oklahoma City bombing.) The following comes from the announcement from Pres. Clinton himself on Feb. 9, 1995:
"The Attorney General is authorized to approve physical searches, without a court order"
The following comes from the WaPo from July of 1995:
Extend not only to searches of the homes of U.S. citizens but also -- in the delicate words of a Justice Department official -- to "places where you wouldn't find or would be unlikely to find information involving a U.S. citizen... would allow the government to use classified electronic surveillance techniques, such as infrared sensors to observe people inside their homes, without a court order.
"Deputy Attorney General Jamie S. Gorelick, the Clinton administration believes the president "has inherent authority to conduct warrantless searches for foreign intelligence purposes.
"Secret searches and wiretaps of Aldrich Ames's office and home in June and October 1993, both without a federal warrant.Government officials decided in the Ames case that no warrant was required because the searches were conducted for "foreign intelligence purposes," a goal of such vital national security interest that they said it justified extraordinary police powers.
Government lawyers have used this principle to justify other secret searches by U.S. authorities."The number of such secret searches conducted each year is classified..."
Pres. Clinton was allowed to do it for far less circumstances than for war, and he was operating under no aurthorization of force, declaration of war, or anything else that is remotely similar.
http://www.washingtonpost.com/wp-dyn/content/article/2005/12/20/AR2005122001053.html By Richard Posner, Judge on the 7th Circuit Court of Appeals, and senior lecturer at the University of Chicago.
We've learned that the Defense Department is deeply involved in domestic intelligence (intelligence concerning threats to national security that unfold on U.S. soil). The department's National Security Agency has been conducting, outside the framework of the Foreign Intelligence Surveillance Act, electronic surveillance of U.S. citizens within the United States. Other Pentagon agencies, notably the one known as Counterintelligence Field Activity (CIFA), have, as described in Walter Pincus's recent articles in The Post, been conducting domestic intelligence on a large scale. Although the CIFA's formal mission is to prevent attacks on military installations in the United States, the scale of its activities suggests a broader concern with domestic security. Other Pentagon agencies have gotten into the domestic intelligence act, such as the Information Dominance Center, which developed the Able Danger data-mining program.
These programs are criticized as grave threats to civil liberties. They are not. Their significance is in flagging the existence of gaps in our defenses against terrorism. The Defense Department is rushing to fill those gaps, though there may be better ways.
The collection, mainly through electronic means, of vast amounts of personal data is said to invade privacy. But machine collection and processing of data cannot, as such, invade privacy. Because of their volume, the data are first sifted by computers, which search for names, addresses, phone numbers, etc., that may have intelligence value. This initial sifting, far from invading privacy (a computer is not a sentient being), keeps most private data from being read by any intelligence officer.
The data that make the cut are those that contain clues to possible threats to national security. The only valid ground for forbidding human inspection of such data is fear that they might be used to blackmail or otherwise intimidate the administration's political enemies. That danger is more remote than at any previous period of U.S. history. Because of increased political partisanship, advances in communications technology and more numerous and competitive media, American government has become a sieve. No secrets concerning matters that would interest the public can be kept for long. And the public would be far more interested to learn that public officials were using private information about American citizens for base political ends than to learn that we have been rough with terrorist suspects -- a matter that was quickly exposed despite efforts at concealment.
The Foreign Intelligence Surveillance Act makes it difficult to conduct surveillance of U.S. citizens and lawful permanent residents unless they are suspected of being involved in terrorist or other hostile activities. That is too restrictive. Innocent people, such as unwitting neighbors of terrorists, may, without knowing it, have valuable counterterrorist information. Collecting such information is of a piece with data-mining projects such as Able Danger.
The goal of national security intelligence is to prevent a terrorist attack, not just punish the attacker after it occurs, and the information that enables the detection of an impending attack may be scattered around the world in tiny bits. A much wider, finer-meshed net must be cast than when investigating a specific crime. Many of the relevant bits may be in the e-mails, phone conversations or banking records of U.S. citizens, some innocent, some not so innocent. The government is entitled to those data, but just for the limited purpose of protecting national security.
The Pentagon's rush to fill gaps in domestic intelligence reflects the disarray in this vital yet neglected area of national security. The principal domestic intelligence agency is the FBI, but it is primarily a criminal investigation agency that has been struggling, so far with limited success, to transform itself. It is having trouble keeping its eye on the ball; an FBI official is quoted as having told the Senate that environmental and animal rights militants pose the biggest terrorist threats in the United States. If only that were so.
Most other nations, such as Britain, Canada, France, Germany and Israel, many with longer histories of fighting terrorism than the United States, have a domestic intelligence agency that is separate from its national police force, its counterpart to the FBI. We do not. We also have no official with sole and comprehensive responsibility for domestic intelligence. It is no surprise that gaps in domestic intelligence are being filled by ad hoc initiatives.
We must do better. The terrorist menace, far from receding, grows every day. This is not only because al Qaeda likes to space its attacks, often by many years, but also because weapons of mass destruction are becoming ever more accessible to terrorist groups and individuals.
All three men make a solid and expected rebuttal of this issue that the Democrats , and others, have decided to hang their hat on. To say that the president lacks these powers is ignorant. He does have the right--and the enumerated power within the Constitution--to take any and all means to protect America from all enemies, foreign or domestic. If this is the debate the Democrats choose to have, and this is the time they have chosen, then let the real debate begin. They have everything to lose if they lose this debate. America will see them for what they are, which is a party so rooted in defeat, and blinded by hatred, that they cannot see the forest through the trees when it comes to national security.
The Bunny ;)
posted by Syd And Vaughn | 7:39 PM
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